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Post by Einhorn on Nov 3, 2022 0:22:17 GMT
I don’t remember the name of the case but the seller was contracted to supply I believe 50ish animal kidneys to the buyer and they perished in the delivery van. Buyers problem. If you don’t read your contract, that’s your choice but if there is a problem you can’t rely on your failure to read the contract you signed as a defence. The clause I outlined is almost invariably there. If you say the term is invariably there, I'll take your word for it. But it's very odd. Contracts are usually concluded on the seller's standard terms, and it's peculiar that they should include a term that disadvantages them when they don't have to. |
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Post by dappy on Nov 3, 2022 0:28:42 GMT
I think they see it as commercially in their interests to be seen to be fair to their customers. It would be different if the buyer was himself organising the courier because he couldn’t be bothered to collect the goods but that isn’t the reality of modern online shopping where the deal is that seller delivers goods to buyers door and buyer doesn’t know or care whether say Amazon uses its in-house delivery vans or contracts it to a third party.
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Post by Baron von Lotsov on Nov 3, 2022 0:30:42 GMT
You mentioned the relevant “subject to” points in your post. This means it , as I said, depends on the detail wording of the contract between the seller and the buyer. In normal circumstances, if the courier (arranged by the seller) lost the package before delivery, would you regard it as being the seller or the buyers problem. There is a separate law to cover that for mail order. It is the seller's responsibility to make sure the buyer gets it, so if it is a duff courier you can claim from the supplier and they claim from the courier. However I have ordered with credit card and it makes no difference. I checked the contract from the supplier and it is the case that when you pay for it, it is yours. I can't see there is any right of anyone else to do anything with something you have paid for except the implied permission to deliver it in reasonable period of time. |
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Post by dappy on Nov 3, 2022 0:44:54 GMT
Obviously I haven’t seen the specific contract in the OP or whatever you are looking at now. The general situation is as I have described but different contracts will vary and they apply to specific cases. Assuming the expert on the radio had advance notice of the question, it is likely he/she had asked for and checked the contract.
While a seller may include a retention of title clause in goods sold on credit (effectiveness not always assured) it is otherwise very rare for title to pass on payment. The two may be simultaneous but payment is not usually the legal trigger.
I am going to bed now so no more replies.
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Post by Baron von Lotsov on Nov 3, 2022 1:11:16 GMT
Obviously I haven’t seen the specific contract in the OP or whatever you are looking at now. The general situation is as I have described but different contracts will vary and they apply to specific cases. Assuming the expert on the radio had advance notice of the question, it is likely he/she had asked for and checked the contract. While a seller may include a retention of title clause in goods sold on credit (effectiveness not always assured) it is otherwise very rare for title to pass on payment. The two may be simultaneous but payment is not usually the legal trigger. I am going to bed now so no more replies. It was paid for on a debit card, so it is just like handing cash over. It does not make sense that you only own what you have paid for conditional on some future thing happening. If you do it on credit then the credit firm owns the title until you have paid in full. She paid in full and the transaction is the proof of ownership. One thing you can be dead certain of is a bank transaction, so it gives certainty to the ownership. In the case you choose to exercise you right to a refund through not receiving it then the reverse happens and when you get your refund they then own the goods, just like taking something back to the shop, but the difference is the law says you have a right to a refund, where shop can refuse unless faulty. |
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Post by Equivocal on Nov 3, 2022 4:38:58 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery. Most hauliers have contracts that create a general lien on goods passed to them by their customers. Provided the goods came into the hands of the haulier legally, the haulier can sell the goods to clear sums owed to it by its customer. |
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Post by Baron von Lotsov on Nov 3, 2022 12:00:07 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery. Most hauliers have contracts that create a general lien on goods passed to them by their customers. Provided the goods came into the hands of the haulier legally, the haulier can sell the goods to clear sums owed to it by its customer. The customer did not owe the courier any money, rather it was the firm who contracted them. Yes I believe it is a done thing to withhold goods if there is money owing, but short of the customer reversing into the courier's van I can't see how they could possibly owe them any money unless it is cash on delivery, but then we are back to the same logic - not their goods until paid for. |
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Post by Equivocal on Nov 3, 2022 14:23:53 GMT
Most hauliers have contracts that create a general lien on goods passed to them by their customers. Provided the goods came into the hands of the haulier legally, the haulier can sell the goods to clear sums owed to it by its customer. The customer did not owe the courier any money, rather it was the firm who contracted them. Yes I believe it is a done thing to withhold goods if there is money owing, but short of the customer reversing into the courier's van I can't see how they could possibly owe them any money unless it is cash on delivery, but then we are back to the same logic - not their goods until paid for. The problem for the customer is that her contract is with the supplier. The haulier also has a contract with the supplier and that contract creates a lien over all goods it transports for that supplier. As far as I am aware, and I am by no means an expert in consumer protection law, there is nothing in either the Sale of Goods Act or the Consumer Rights Act which defeats the haulier's lien.
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Post by Baron von Lotsov on Nov 3, 2022 14:39:18 GMT
The customer did not owe the courier any money, rather it was the firm who contracted them. Yes I believe it is a done thing to withhold goods if there is money owing, but short of the customer reversing into the courier's van I can't see how they could possibly owe them any money unless it is cash on delivery, but then we are back to the same logic - not their goods until paid for. The problem for the customer is that her contract is with the supplier. The haulier also has a contract with the supplier and that contract creates a lien over all goods it transports for that supplier. As far as I am aware, and I am by no means an expert in consumer protection law, there is nothing in either the Sale of Goods Act or the Consumer Rights Act which defeats the haulier's lien.
"Lien: a right to keep possession of property belonging to another person until a debt owed by that person is discharged."
By definition they can not pull that one. The only way this could have happened legally is if she agreed to a contract that explicitly stated she was underwriting the goods on behalf of the supplier if the supplier went bust, and you don't agree to that unknowingly. They have to get your agreement for anything that overrides rights in standard law. There is another obvious aspect to this and that is even if what you say is true, which it is not, then upon enquiry of where are my goods, she would have it explained to her. It's not through lack of trying, like she had got to the point where she had no more things and ideas she could employ and that is why she contacted the BBC as the last resort. Also if some firm acts as a bank where you deposit money, as in say if the firm had her money at some point and she had no ownership of the goods, then her losses are guaranteed by virtue of being a consumer, just as if you had funds in a bank and the bank went bust. There is some limit to the amount but it was £500 in her case so she is covered that way I believe. You might like to check as there could be reasons why not, but I think it is so. My electricity supplier had £200 of mine and I got it back automatically after about 5 months. I was kept fully informed.
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Post by Equivocal on Nov 3, 2022 15:19:33 GMT
The problem for the customer is that her contract is with the supplier. The haulier also has a contract with the supplier and that contract creates a lien over all goods it transports for that supplier. As far as I am aware, and I am by no means an expert in consumer protection law, there is nothing in either the Sale of Goods Act or the Consumer Rights Act which defeats the haulier's lien.
"Lien: a right to keep possession of property belonging to another person until a debt owed by that person is discharged." By definition they can not pull that one. The only way this could have happened legally is if she agreed to a contract that explicitly stated she was underwriting the goods on behalf of the supplier if the supplier went bust, and you don't agree to that unknowingly. They have to get your agreement for anything that overrides rights in standard law. There is another obvious aspect to this and that is even if what you say is true, which it is not, then upon enquiry of where are my goods, she would have it explained to her. It's not through lack of trying, like she had got to the point where she had no more things and ideas she could employ and that is why she contacted the BBC as the last resort. Also if some firm acts as a bank where you deposit money, as in say if the firm had her money at some point and she had no ownership of the goods, then her losses are guaranteed by virtue of being a consumer, just as if you had funds in a bank and the bank went bust. There is some limit to the amount but it was £500 in her case so she is covered that way I believe. You might like to check as there could be reasons why not, but I think it is so. My electricity supplier had £200 of mine and I got it back automatically after about 5 months. I was kept fully informed.
I am not aware of anything that might make the clauses unlawful or unenforceable but, if you are, please direct me to a source.
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Post by Baron von Lotsov on Nov 3, 2022 15:42:40 GMT
I've just had a think about this and the liens you say are in their contracts would be likely used in cases where costs rack up for storage. This is particularly important when importing goods and the issue of the goods getting stored by customs. It can be extremely expensive if you cock it up, and with some contracts you don't sign all the work over to the courier and also for other reasons where you are unreasonable in your part agreed that you should make the goods deliverable. Someone might otherwise be a complete awkward bastard and cause the firm to make repeated unsuccessful deliveries whereupon it will eventually sit in their warehouse until the customer has a change of heart, but at some point the storage costs are going to affect the firm and they want the right to dispose of it.
We are therefore clutching at straws and I think if this went before a judge she would get her money. I expect the firm is so arrogant that it likes to ignore litigation too. I know someone who took Sky to court for having 100 stupid conversations on the phone with them about sorting a problem out. He was paid five grand for that work (double with inflation). The firm then wrote to him with a £2500 cheque saying acceptance nullifies your claim and he then sent it back and a £5000 one arrived. These are the kind of bastards one is typically dealing with - as per try anything to rip you/no regard for the law thanks to the misleading advice of experts.
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Post by Handyman on Nov 3, 2022 16:01:22 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery. Not certain but as the seller has gone bust you would have to contact whoever is winding the company up the adjudicator, I think they are called and how they may dispose of any remaining stock |
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Post by dappy on Nov 3, 2022 16:16:12 GMT
Baron you have had this explained to you by a number of different people and by the expert on the radio. If you want to believe you know better that's fine of course but if you want to understand the reality of the law then perhaps you need to listen a little.
In the case you mention, it seems a consumer ordered some goods from a supplier and paid them some money. We don't know what payment method she used. The supplier failed financially after the goods were placed into the hands of a courier but before they were delivered.
The legal situation depends on the terms of the contract between the buyer and the seller and specifically when title is defined under that contract as passing.
It is highly likely that the contract will specify that title only passes to the buyer on delivery to her premises.
In that situation she, having paid money to the supplier becomes an unsecured creditor of the supplier.
If she paid the supplier by credit (or in most cases debit) card, she will have a claim against her credit card company
If she paid the supplier by bank transfer, she has no claim of anyone else apart from hoping the administrator/liquidator of the supplier realises sufficient funds to pay her some of all of her money back from the suppliers net assets. Honestly that is unlikely.
The relationship between the supplier and the courier is irrelevant to the buyer.
It is very unlikely but just about possible that the contract between the buyer and the seller specified that title passes to the buyer when the goods leave the sellers factory.
In that unlikely scenario the courier company would be acting on behalf of the buyer (even if arranged for by the seller) and hence would be obliged to hand over her goods on demand.
this scenario though is highly unlikely.
Given that the buyer apparently asked a legal expert on the BBC and he had time to check, i is likely that he asked for the contract and confirmed she had no title over the goods.
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Post by dappy on Nov 3, 2022 16:19:24 GMT
"Administrator" not adjudicator Handyman or depending on the nature of financial failure may be "liquidator."
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Post by patman post on Nov 3, 2022 16:28:43 GMT
Surely the buyer has title and has paid the supplier, including carriage, I think that must mean the carrier becomes a claimant on the supplier, not on the buyer and should delivery. Not certain but as the seller has gone bust you would have to contact whoever is winding the company up the adjudicator, I think they are called and how they may dispose of any remaining stock The main point would appear to be that the buyer of the goods has a contract with the supplier, and so does the delivery company. If the supplier has ceased operating, both the customer and the delivery company are waiting either for goods or payment from the supplier. I cannot see that the customer has any contract with the delivery company, or that the delivery company has any contract with the customer — it is simply an outsourced extension of the supplier and cannot release the goods to the customer. I always use a credit card for online shopping. That way my contract is with the card company, and not the seller of goods or services… |
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